Alexander Hamilton explained in “Federalist No. 74” that the criminal code is so severe that without the president’s power to issue pardons “justice would wear a countenance too sanguinary and cruel.” The difficulty of using that power in a fair and defensible manner is underscored once again by the recent ProPublica studies. There is a general understanding that the Office of the Pardon Attorney is insufficiently staffed to handle the number of petitions directed to it for pardons, commutation, and other forms of relief sought by individuals convicted of past offenses. Even if several attorneys were added, the kinds of misjudgments identified by ProPublica would most likely continue. To protect its credibility and purpose, the office needs to rethink how it can better discharge its duties.

When lobbied directly, the president is apt to decide on the basis of whoever has the most money and political influence.

Beyond those types of changes, the larger problem remains: petitioners making an end run around the Office of the Pardon Attorney and going directly to the White House. Constitutionally, the president may exercise the pardon power without advice from the Pardon Office. When that happens, the likelihood is even greater unfairness, injustice and public wrongs. In exercising the pardon power, the president should act in an informed and credible manner. With the assistance of the Pardon Office, that is possible, even if not guaranteed. Acting on his own, the president is apt to decide on the basis of whoever has the most money and political influence.

Examples in recent decades of presidents acting independently of the Pardon Office include President Gerald Ford’s pardon of Richard Nixon, the Iran-Contra pardons issued by the first President George Bush, the FALN (Armed Forces of Puerto Rico) commutation and Marc Rich pardon by President Bill Clinton, and the Scooter Libby commutation by President George W. Bush. Those presidential decisions stand, legally. They also stand for presidential initiatives that have been widely and properly condemned.